Dallas DA Craig Watkins may have good arguments for not testifying, experts say

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David Woo/Staff Photographer

Dallas County Assistant District Attorney Russell Wilson (second from left) conferred with others during last week’s hearing. After the hearing, Wilson said the case could set a precedent for how prosecutors do their jobs.

Court watchers were taken aback by Dallas County District Attorney Craig Watkins’ refusal to comply with a judge’s order to appear in a courtroom during a prosecutorial misconduct hearing last week, but legal experts say he may have valid arguments to keep him from testifying.

The problem is not so much what Watkins did, they say, as how he did it — not coming to the courtroom despite having been served a subpoena weeks before, then having an assistant claim he was well enough to work in his office but too sick to come four floors down to testify.

“It’s always troubling when any person defies a court order,” said Sandra Guerra Thompson, professor of criminal law and director of the Criminal Justice Institute at the University of Houston.

Though Thompson is not familiar with the specifics of the mortgage fraud case against oil fortune heir Al Hill III and the allegations of prosecutorial misconduct, she said Watkins probably “didn’t want to have [to answer] the questions. But I think that appearing is not something that is optional when there’s an order by a judge.”

A spokeswoman for Watkins said he was still ill Monday and unavailable for comment. She would not discuss the nature of his illness. They insist that he honored the subpoena because he was in the building.

George Milner, attorney for Hill, disagreed. “The subpoena compelled him to be present inside the 204th District Court at 9 a.m. on Feb. 14,” he said.

His failure to appear could set a dangerous precedent, Milner said. “There are numerous defense attorneys who now believe their clients don’t have to be present in the courtroom either as long as they’re in the general vicinity of the court.”

Irritated judge

State District Judge Lena Levario clearly was irritated by Watkins’ failure to appear, but she eventually granted a continuance in the case to resume March 7.

Hill’s attorneys are seeking to have the case against him dropped because they claim the criminal charges were brought as a favor to Lisa Blue, a Watkins friend and Democratic political benefactor. They claim his constitutional right to due process was violated because Watkins is not a “disinterested prosecutor” and Hill is being selectively and vindictively charged.

Though the district attorney’s strategy may have been poorly executed, some said prosecutors representing Watkins raised valid arguments about the judge’s authority to dismiss the case even if misconduct allegations are true, and the need to protect the confidentiality of the prosecutors’ office.

Generally, “the decision to charge and move forward with a case rests with the DA,” Thompson said, not the judge. After evidence has been presented at trial, a judge may decide evidence is insufficient or there is not enough proof. But most of the time, “the conversation about prosecutorial misconduct would not be a valid ground for dismissing.”

Jennifer Laurin, an assistant professor of law at the University of Texas, said a defendant has a right to “not be unconstitutionally charged,” but said “the burden for proving the kind of claim that Hill is trying to raise is very, very, very high.”

Milner acknowledged that judges’ authority to dismiss cases is limited. But he said this is one of those cases, “because you have prosecutorial misconduct, which rises to the level of a due process violation.”

“To put it simply, I think all people would agree that if a prosecuting attorney was bribed to bring an indictment there is something fundamentally wrong,” Milner said.

Local defense attorney Pete Schulte, a former prosecutor, said, “Absent any showing that the information that was presented to the grand jury was fabricated … any claims of prosecutorial misconduct are premature until the criminal case has been complete.”

Defense attorney John Helms, a former federal prosecutor, said Levario could dismiss the Hill indictment if she finds that Blue was directing the prosecution. Helms said the judge may have felt there were only two people who can answer that for certain — Blue and Watkins.

“I suspect that the court was hoping that someone would come in, testify, and the defense’s position that there was misconduct would have to be rejected because of any lack of evidence for it,” Helms said. But, “the two people who really know about it declined to testify for other reasons.”

Blue took the stand but invoked her Fifth Amendment right to avoid self-incrimination after her attorney said there may be an FBI investigation of the matter.

Not lightly dismissed

In court, Levario said she didn’t take the ability to dismiss the case lightly but, “if there is evidence that Lisa Blue was calling the shots on whether or not a case was presented to a grand jury … I think that would violate his rights.”

She said Hill’s attorneys had a right to present evidence of a possible violation. But the proceedings ground to a halt when Watkins refused to appear.

Assistant district attorney Teresa Guerra Snelson told Levario that Watkins would not appear because “it would be improper for him to make an appearance in this matter and discuss issues that are clearly within the purview of his discretion as the district attorney.”

Thompson said, “Traditionally he’s right, that prosecutors have enormous discretion whether to charge or not to charge a case. And normally the courts are very deferential about that.”

Laurin agreed. “Courts are very protective of prosecutors when their testimony is sought,” she said. “There’s also a sort of common law privilege with respect to documents, writings, anything that reveals the deliberative process of an attorney in the case.

Thompson said the court’s willingness to keep the workings of the prosecutors office confidential is understandable.

“The practical implications of allowing a defendant to stop proceedings or to get proceedings dismissed on these kinds of grounds would require some kind of hearing and questioning of a prosecutor as to why they brought charges,” she said. “What were they thinking? What were their priorities? And that’s the kind of questioning that courts will not do.”

“That’s why it’s so important to have prosecutors of good moral character because they have a lot of power,” Thompson said.

Russell Wilson, an assistant district attorney, said after the hearing that his office will appeal the judge’s rulings before March 7.

“We think it’s an important case for prosecutors throughout the state to be able to conduct their investigation in an unfettered way,” he said.

Wilson said the case could set a precedent for how prosecutors do their jobs.

Follow Scott Goldstein on Twitter at @dallascrime.

djennings@dallasnews.com; sgoldstein@dallasnews.com

KEY PLAYERS

Al Hill III

Great-grandson of wealthy oilman H.L. Hunt who learned he was facing criminal charges of mortgage fraud two weeks before a civil trial was to begin in which Hill was fighting attorney Lisa Blue over millions in legal fees. The fees stemmed from a case in which she represented him in his battle for a share of the family fortune.

Lisa Blue

High-powered Dallas attorney embroiled in a fight over legal fees with Hill. She’s a friend and political benefactor of District Attorney Craig Watkins. Like Watkins, she was summoned to court to testify about allegations that Watkins committed prosecutorial misconduct by consulting her about filing the case against Hill. She took the Fifth Amendment.

Craig Watkins

Dallas County district attorney who was ordered to appear in Judge Lena Levario’s court on Thursday to answer questions about his dealings with Blue but who failed to do so. His representatives said at first he would not appear because he wanted to protect the sanctity of prosecutorial investigations. They later said he was too ill to appear.

Lena Levario

The district court judge who felt there was enough evidence of prosecutorial misconduct over the filing of the mortgage fraud case to hold a hearing and call Blue and Watkins to the stand to discuss their dealings with each other. After Watkins failed to comply with her order to appear in her court, she rescheduled the hearing for March 7.

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